Supremes Act on US v. Stewart

Posted by David Hardy · 13 June 2005 01:06 PM

US v. Stewart is an appeal from a 9th Circuit panel ruling, reversing a conviction under 18 USC 922(o) for having possessed a homemade full auto weapon. The panel (led by the pro-gun and libertarian-leaning Judge Kozinksi) reversed based on the Commerce Clause -- there was nothing commercial about the defendant's making the arm and keeping it in his home. (You can get the pdf file via the link on this page.

There are similarities and distinctions between the two cases. On the one hand, given that the medicinal pot case says you must consider the entire of the economic activity and not just the defendant's actions, or what was legal activity, it undercuts the original Stewart rationale. It'd be a safe bet that there is enough illegal commerce in full auto to pass any likely commerce test.

On the other hand, Stewart does resemble Lopez in that it involves a non-economic possessory activity (indeed, it could be a bit stronger than Lopez in that here the gun involved had not even travelled in commerce). Although -- if we are to look at an entire "industry" rather a segment of it -- possession of a gun within 1000 ft. of a school can hardly spawn an industry, whereas making machineguns could.

Further thought: what role would Congressional determinations play? In the medicinal pot case, Congress had expressly found, in preambles to the drug laws, that there was interstate commerce and impacts upon interstate commerce. In the case of 922(o), it was an amendment, hastily added with almost no debate and zip mention of interstate commerce. Congress just voted to ban new MGs because it sounded like a good idea at the time.

Still another thought: how does the fact play in that, if there were no 922(o), all MGs would still have to be registered under the NFA? Plus the fact that registered MGs have been involved in no or virtually no crime, and thus don't affect commerce negatively? (I think around the time of this amendment, ATF was asked whether there was any evidence of a registered NFA device having ever been used in crime, and it responded no -- back in the mid 1970s, I did have one dealer tell me that he had once heard of a criminal use of a registered NFA, but that was the only case. So depending upon which is correct, the answer is one or zero, in seventy years of the statutory scheme). Here's a link to an ATF statement (pdf, 4 megs) that that registered NFAs are rarely used in crime.

Actually -- as Elmer Keith says, hell, I was there. No, I can't give details, but I was there, in a congressional office while the tactics were hashed out. Congress didn't ban MGs because it sounded like a good idea. It banned them because the Members knew they were passing a pro-gun bill, the Firearm Owners' Protection Act, and felt they needed to add on something anti-gun so they've have something to say when they were criticized as clones of the NRA. There were two amendments which had been introduced by the other side -- the other would have banned licensed silencers -- and one was going to be passed, period, whether it was good, bad, or indifferent. Yep, that's the sad story of how laws are made.

04-617 UNITED STATES V. STEWART, ROBERT W.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Gonzales v. Raich, 545 U.S. ____ (2005).

I’ve done some research and have found only one documented case of a legally owned machine gun being used in a crime, and that was a murder committed by a law enforcement officer. On September 15th, 1988, a 13-year veteran of the Dayton, Ohio police department, Patrolman Roger Waller, then 32, used his fully automatic MAC-11 .380 caliber submachine gun to kill a police informant, 52-year-old Lawrence Hileman. Patrolman Waller pleaded guilty in 1990, and he and an accomplice were sentenced to 18 years in prison.

I know of at least one other incident, but it'd be difficult to track down. In the late 1970s a Class III dealer in Elkhart County, Indiana used a registered M16 to commit a, er, felony crime of domestic violence against his wife in the front yard of their home. She did not recover. I seem to recall that he killed himself afterward, though I could be mistaken. I've seen the news clippings on this incident.

Dave, you ask, "how does the fact play in that, if there were no 922(o), all MGs would still have to be registered under the NFA? Plus the fact that registered MGs have been involved in no or virtually no crime, and thus don't affect commerce negatively?" Considering that 922(o) wasn't accompanied by any discussion of the negative effects of machine guns on interstate commerce, presumably the fact that NFA guns don't affect interstate commerce would make no difference -- unless Congress were to add such a finding. But assuming Congress did add such a finding, I think don't think a court would second-guess it. I haven't looked lately, but I seem to recall that the standard is quite low. Congress could show that machine guns are sometimes used in crime, which one might believe has an adverse effect on interstate commerce, and an imaginary reasonable person might think that banning manufacture of lawful machine guns would cut off a source of illegal machine guns used in crime. That imaginary reasonable person might be an idiot, and empirically wrong, but no more so than the hypothetical, imaginary reasonable people who might believe other federal laws do some good.